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Abstract
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Self-defense often is described as being innate, inalienable, and individual. But the Supreme Court has never expressly held self-defense to be a constitutional right. Instead, for most of American history, courts and commentators pared self-defense from criminal sanctions, plucked it from the common law, or sounded it from the penumbras of Due Process or the Ninth Amendment.
District of Columbia v. Heller is the closest the Court has come to stating that self-defense is a constitutional right. Heller held that the Second Amendment protects the right to keep and bear an arm in the home for self-protection. The majority described individual self-defense as the "central component" of the Second Amendment, a right that "pre-exist[s]" the written Constitution. In Heller's sequel, McDonald v. City of Chicago, the majority described the right to self-defense as "basic" and "deeply rooted." Though Heller and McDonald still did not directly state that self-defense is constitutional law, these cases appear to make self-defense more a matter of federal constitutional concern than ever before.
Yet, these decisions--and the lower courts that have followed them--have done little to define this "central" feature of the Amendment. Sometimes judges or commentators suggest that the terms "preexisting," "basic," and "deeply rooted" mean the Second Amendment is fixed in English common law tradition.
Sometimes they use these terms to mean that the Second Amendment codifies
natural rights philosophy. Some decisions appear to expand these sources, suggesting that Second Amendment self-defense is not tied to any one culture, nation, or time, but is trans-cultural, trans-national, and trans-temporal. Some reject any human agency for the right. For them, self-defense is not a creature of constitutions, common law, history or tradition, but is written into the soul of man by God.
This article investigates what it means to say the "central component" of the Second Amendment is self-defense and explores how that "central component" relates to firearm policy. It assumes that Heller understands Second Amendment self-defense to be derived from a body of Anglo-American jurisprudence that pre-exists the Founding. Given this assumption, self-defense, as well as its close relative, defense of others, has been far from inalienable, individual, or innate. Instead it has been heavily conditioned and constructed by the state...
Available: https://scholarship.law.duke.edu/lcp/vol80/iss2/4 |